February 3, 2015 Session Heard at Memphis 
Appeal from the Circuit Court for Gibson County No. H8987 Clayburn L. Peeples, Judge
Beau E. Pemberton, Dresden, Tennessee, for the defendant, Jonathan Mitchell Grimes.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister and Jason Scott, Assistant District Attorneys General, for the Appellee, State of Tennessee.
John Everett Williams J., delivered the opinion of the court, in which Roger A. Page, J., joined. Camille R. McMullen, J.,
JOHN EVERETT WILLIAMS, JUDGE
Trial. This case concerns allegations by the victim that the defendant, her stepfather, molested her. The defendant was subsequently indicted for rape of a child and aggravated sexual battery.
The thirteen-year-old victim testified that when she was eight years old, she moved to Medina, Tennessee, where she lived with her mother, brother, and grandmother for approximately a year and a half. She remembered having her ninth birthday while they lived in Medina. The victim said that her mother and the defendant began dating some time during that time period and that the defendant moved in with her family shortly after her family moved to Medina.
The victim recalled an incident during the time period that they lived in Medina when the defendant was tickling her and her brother and the defendant touched her vagina on the outside of her underwear. She stated that she was wearing a skirt at the time of this incident. When this incident occurred, her mother was standing at the door, and her brother was being tickled as well. The victim did not immediately tell anyone about this incident. In addition, the victim said that each night the defendant would tuck her into bed, he would touch her "private spot." On one particular night, the defendant placed his hand under her clothes and penetrated her vagina with his finger. When this occurred, she rolled over, and the defendant stopped touching her. She said the defendant penetrated her vagina with his finger on only one occasion. The victim told her brother about these incidents of abuse, and when the defendant deployed to Iraq, she told her mother that the defendant had been touching her inappropriately. When the victim's mother confronted the defendant about the victim's accusations, the defendant denied any abuse. The victim said her mother never contacted the police about the defendant's abuse of her.
On a different occasion, the victim awoke to discover that she was on top of the defendant and that her pants had been pulled down. When she pulled her pants up, the defendant asked her what was wrong, and she told him she was scared of monsters and returned to her room. On a different occasion, the defendant told her that he wanted to tickle her naked, so he took her to the room she shared with brother, placed her on the top bunk, removed her clothing, and tickled her naked after blocking the door with his foot so that her brother could not get into the room. She explained that the defendant was able to tickle her on the bed and still have his foot blocking the door because the room was very small. During this incident, the victim screamed for her brother, told the defendant to stop, and covered her body with the sheets as her brother tried to get in the room. The defendant finally stopped touching her and left the room. When her brother gained entry into the room, she told him what the defendant had done to her moments before. The victim said that after she told her brother about the defendant's abuse, her brother disclosed this abuse to a school counselor. The victim later told this counselor that she had been abused by the defendant.
The victim stated that when the defendant returned home from military deployment, they moved to a house in Milan, Tennessee, where the victim lived from age nine to age ten. She stated that there were other incidents involving the defendant that occurred after the family moved to Milan. On one occasion, when her mother was at work, the defendant tried to make her try on old clothing and told her that she had to disrobe completely. When she refused, he spanked her. She then told the defendant, "I'm going to get you back." She explained that this meant she was "going to tell on him." However, she acknowledged that by the time her family moved to Milan, she had already told her mother about the defendant's abuse of her in Medina, even though her mother "didn't do anything." On another occasion, when the victim was nine years old and her mother was at work, the defendant helped her get conditioner out of her hair and "stroked parts of [her] body." She said, "[the defendant] was just taking the sponge and was scrubbing me on my stomach and then he went down to my private part, of course, and he said you need to wash it." The victim said she told him to get away and was unsure whether she told her mother about that incident.
On still another occasion, when they were playing "cops and robbers, " the defendant tied the victim's hands to the bedpost and pulled down her pants against her will and then walked away. The victim stated that the defendant did not touch her inappropriately during the incident. Her brother, who had been trying to get into the defendant's bedroom, was able to enter the room and free her. The victim also recalled an incident when the defendant bent over to help her with her homework and placed his elbow on her pants so that his elbow was in contact with her vagina. She said she pushed him away because she did not "want anything touching [her] there[.]" In addition, the victim recalled an incident, although she did not know her age at the time, when the defendant instructed her to masturbate in the shower, and she complied. The victim stated she watched movies containing sexual content with the defendant and her family. She denied watching these movies with the defendant alone.
The victim stated that she had never been molested by any adult other than the defendant. She acknowledged that although she threatened to get the defendant back when he spanked her, her brother was the one who disclosed the defendant's abuse of her to the school counselor. She explained that when she made that statement about getting the defendant back, she meant that she was going to tell someone about his abuse of her with the hope that they could stop it. The victim asserted that she had told the truth about what the defendant had done to her. She denied confusing the defendant with someone else who had touched her inappropriately.
When the victim was asked if she remembered having hallucinations about bugs being on her in the hospital even though there were no bugs, she stated, "Really, I don't even know what was going on then." She stated that her babysitter did not show her pornographic movies; instead, she remembered "picking [the disks] up and thinking it was a movie and putting them in." She did not recall going to Pathways in 2006 for treatment for anxiety after the pornographic movies. The victim remembered "going to the doctors about the bugs and . . . seeing the movies, but that's all." She acknowledged that she did not inform the forensic interviewer or the district attorney about the incident in which the defendant tied her to a bed. However, she asserted that she told the forensic interviewer she could not remember everything that happened and was going to tell her about the incidents she remembered. The victim acknowledged telling the defendant on several occasions that she was going to get him back. She said she began to dislike the defendant when he began disciplining her and her brother and spanking them. She added, "I started not feeling comfortable with all that he'd been doing, touching me and hitting us and stuff, so I just started not liking him."
The victim's twelve-year old brother testified that he recalled an incident in Medina when the defendant and his sister were in a bedroom and he could not get in the bedroom. He stated that the victim was yelling his name, and he could not get inside the room because the defendant had braced his foot on the door. He said that when the defendant left the room, he ran inside, and the victim was okay. The victim's brother also recalled an incident in Milan when the defendant and the victim were alone in a locked room. He explained that that they were playing hide and seek. The victim had gone into another room to hide, and he heard her start yelling. Because he was unable to open the door, he hid, and when the defendant left the room, he went inside. He said the victim "was tied up and her pants were down." He said that although her pants were down, her panties were not down. He stated that "[the victim's] eyes were tied with some kind of cloth and her arms were tied with a belt." He also said "[h]er feet were tied with a belt."
Heather Gordon, a Child Protective Services Investigator with the Department of Children's Services in Gibson County, investigated the case involving the victim. She contacted law enforcement, who did an initial interview of the victim. Because the victim disclosed that she had been sexually abused in the initial interview, Gordon set up a forensic interview with the victim.
The defendant testified that he never sexually abused or inappropriately touched the victim in any way. He met the victim's mother in spring 2007, and they married in February 2008. The defendant said he was deployed to Iraq from the middle of May 2007 to February 2008, when he returned home for two weeks and married the victim's mother before returning to Iraq until June 2008.
During his deployment, the defendant called home, and the victim's mother, who by that time was his wife, informed him that the victim had accused him of "touching her inappropriately." He replied, "That's not possible. I've been in Iraq since right after Mother's Day." The defendant said that as he and the victim's mother asked the victim questions about her abuser, the victim disclosed that the person who touched her inappropriately drove a red car. The defendant said he had always driven a white truck. The victim's mother acknowledged that she had an ex-boyfriend who drove a red car, and by the end of the conversation, the defendant and the victim's mother believed that the ex-boyfriend was responsible for the victim's abuse. The defendant acknowledged that neither he nor the victim's mother ever contacted the police about pressing charges against the person they believed was responsible for molesting the victim.
The defendant stated that he returned from Iraq in June 2008 and moved into the family's trailer in Medina. He lived with the family in Medina from June 2008 to November 2008, when the defendant and the family moved into a house in Milan. At the end of 2008, Niva Abiles moved in with the family because she was having a difficult time financially.
The defendant said that when he began dating the victim's mother, he learned that the victim "had been shown pornographic images by her babysitter and had been treated at Pathways for anxiety because of the pornography." He also learned that the victim in 2006 "had a hallucinogenic episode where she was treated at the McKenzie Hospital and during this episode she had stripped all of her clothes off and was looking for bugs that were on her[, ] and the nurse . . . state[d] in her report that there were no bugs [any]where."
The defendant stated that he could not recall the incident described by the victim that allegedly occurred in Medina when she awoke on top of him with her pants down. He stated, "I'm a heavy sleeper so I do not recall her ever being on top of me." The defendant said he would sometimes return home from work at 3:00 a.m. and find the victim in his and his wife's bed, and he would move the victim to her own bed. The defendant acknowledged that he bathed the victim, although he denied touching her inappropriately while doing so. He said he bathed her because he had gotten a phone call from his wife, the victim's mother, who told him that the victim had been smelling bad and that he needed to show her how to clean herself. He stated that the victim's mother was unable to teach the victim how to bathe because she was at work. The defendant denied touching the victim inappropriately or sexually while he was teaching her how to bathe. He admitted that he showed the victim how to bathe after the victim accused him of molesting her.
The defendant acknowledged that he frequently played a tickling game with the victim and her brother in which he would grab them by their ankles, hold them up, and tickle their stomach or under their arms. Although he said the victim liked the game at first, she "would say her pants were falling down and she was uncomfortable and I would let her go." The defendant said, "[N]ormally that would end that play episode, 'cause . . . it's kind of hard to continue when you've already been accused [of touching her inappropriately] and you just don't want to even be close to it." He acknowledged that he might have accidentally touched the victim's vagina while he was tickling her, but he denied tickling her for "sexual gratification or arousal." He admitted that he continued to tickle the victim after the victim accused him of sexually abusing her.
The defendant asserted that he would not have been able to brace his foot against the door of the victim's bedroom in Medina if he was standing by her bed. He acknowledged that he disciplined the victim and her brother when he returned from his deployment in Iraq by yelling at them, grounding them, taking away their video games, and spanking them. He stated that it did not make him feel uncomfortable to discipline the victim after she had made allegations of sexual abuse against him. The defendant denied sexually abusing the victim while spanking her.
The defendant said that the victim did not like being disciplined. He recalled an incident when his friend Theodore Smith was at his house playing video games and he told the victim to clean up her clothes and toys, and the victim refused. When the victim became defiant, he spanked her on her bottom, and the victim told him, "I'll get you back for this. I'll get you back." The defendant said that approximately one week after the victim made this statement, he was arrested for abusing the victim. He said he believed the victim testified dishonestly about the abuse because she did not like him. He also asserted that the victim's brother testified falsely because he did not like him either. The defendant denied watching pornography with the victim. He also denied telling the victim to masturbate in the shower. He claimed that the victim's mother or the victim's grandmother usually tucked the children into bed. The defendant stated that although he recalled putting handcuffs on the victim and her brother while playing "cops and robbers, " he denied molesting the victim during this game.
Theodore Smith, who had served in the military with the defendant, testified that he had been friends with the defendant for the last four years. Smith said he was present on one occasion when the defendant disciplined the victim by spanking her with an open palm, and the victim told the defendant, "I'm going to get you back for that." He witnessed the defendant's arrest for abusing the victim approximately one week later.
Matthew Schwarz testified that he had known the defendant for seven years, had worked with him, and had shared an apartment and house with him. He opined that the defendant had been honest about his involvement with the victim.
Neva Abiles testified that she lived with the defendant, his wife, and his wife's children from December 2009 to March 2010, when the defendant was arrested. During this time period, she did not observe the defendant physically disciplining the victim, although she saw him take away games and send the victim to ...